By Andrea Gallo and John Simerman | Advocate | March 2, 2020
Louisiana’s judges have promised the Legislature over and over again that they can clean up their own scandals and hold themselves to an ethical standard that instills respect from the public.
But if the bills pre-filed for the upcoming legislative session are any indication, lawmakers are losing patience. In the session that begins next Monday, legislators plan to take aim at Louisiana’s opaque system for policing judicial misconduct, which mostly keeps the public in the dark. In the hopper are bills that would rewrite rules that ban and threaten people for revealing judicial complaints; force the public posting of judges financial disclosure forms; and possibly even upend the system of electing judges that Louisiana has embraced for the past century.
State Rep. Jerome Zeringue and state Sen. Jay Morris are co-sponsoring bills that would dramatically increase the public’s access to information about misbehaving judges, while a response from the Judiciary Commission — which polices judicial misconduct — makes plain that the two branches of government are going to clash over separation of powers.
With that reform legislation looming, Judiciary Commission officials are trying to signal that they will clean up their own mess. On Saturday, they announced they are considering three changes in the way judicial misconduct cases are handled.
All of the proposals come amid a backdrop of judicial drama and outcry, with the governor, watchdog groups and others having called this week on Assumption Parish Judge Jessie LeBlanc to resign after she admitted to using a racial slur in text messages with her paramour, a former top Assumption Parish sheriff’s deputy. LeBlanc relented to the pressure on Thursday, submitting a resignation letter laced with bitterness, in which she argued that she was a victim of a smear campaign from the District Attorney’s Office over her unfavorable rulings toward prosecutors.
“We do not need another Judge being endlessly attacked and vilified at the expense of the integrity of our system of justice,” LeBlanc wrote in her resignation letter.
She appeared to be referring to the experience of Supreme Court Justice Jefferson Hughes III — one of two justices she copied on the letter. The Advocate and The Times-Picayune published a series of stories over the past year revealing that Hughes, who remains on the high court, was under federal investigation over a possible conflict while a district judge, and that he wrote at least three apology letters to litigants in his courtroom after the investigation ended without charges.
Hughes’ apology letters and the details of the investigation into him were never made known to the public as he ascended to the state’s top court. He’s been the subject of another judiciary complaint since then, this time because of an allegation that he offered money to a former Hammond city councilman to switch sides in the 2019 Supreme Court race. Hughes acknowledged visiting the councilman, but denied offering him money.
Such secretive investigations and outcomes would no longer be allowed if Zeringue and Morris’ bill were to pass. Current state law and Supreme Court rules prevent people from even acknowledging they filed a complaint with the Judiciary Commission, though a recent rule change allows people to reveal a complaint once it has been closed or a hearing has been scheduled — unless the commission explicitly says they can’t.
Many complaints that are deemed valid still remain forever hidden. The Judiciary Commission may privately caution, admonish and warn a judge, or strike a “deferred disciplinary agreement” for one willing to perform an agreed-upon act of penance.
“The process as it stands is very secretive,” said Zeringue, a Houma Republican. “It doesn’t allow the public information in terms of transparency.”
Zeringue’s proposed bill would allow people to reveal complaints they file against judges. It would also make public the letters that judges receive to schedule Judiciary Commission hearings, and the hearings themselves would be open to the public. The proposed rule changes that the Judiciary Commission is mulling might also allow the public to attend such hearings.
Zeringue’s bill would also bar the Judiciary Commission from reprimanding judges privately: Instead, cautions, warnings and admonishments would become public. The commission would also be required to publish annually how many disciplinary actions it took against judges.
The Judiciary Commission has no plans to do away with such private actions. Its rule change says the commission might limit judges to receiving one private admonishment within a certain time frame, with admonishments afterward becoming public.
When Zeringue sponsored a bill in the Legislature last year to increase Judiciary Commission transparency, judges pushed back, saying lawmakers were out of their lane by trying to regulate the Judiciary Commission, which operates under the Supreme Court. This year, Zeringue and Morris are trying to address those concerns through a second bill. That bill would put a constitutional amendment before voters to give the Legislature the explicit ability to set the confidentiality rules for the Judiciary Commission.
“You have to take in the context of what we’re trying to do here, which is simply make public some of these disciplinary processes and results, you know?” said Morris, a Monroe Republican and an attorney. “We’re legislators, so we legislate. We’re not infringing on their ability to make judicial decisions; I think we’re staying within our house.”
Ed Walters, the Judiciary Commission’s chairman, and Fifth Circuit of Appeal Judge John Molaison, the commission’s vice chairman, disagree.
“Our form of democracy requires a constitutional balance of power between the three equal branches of government: executive, legislative, and judicial,” they wrote in response to the bills. “The balance and separation of power is consistently found in most state and federal systems. Each branch has its own discipline system. The judicial branch, through the Louisiana Supreme Court, has exclusive constitutional jurisdiction over the discipline of Louisiana’s judiciary.”
Such arguments are familiar to Gabe Roth, the executive director of Fix the Court, a national nonpartisan watchdog group that pushes for more transparency in federal courts.
Separation of powers arguments are “almost like the boogeyman that members of the judiciary like bringing up as a way to scare lawmakers away from passing new laws that would require greater oversight,” Roth said.
“Whether or not those concerns are real, it’s almost just like a shortcut of saying, ‘You want to mess with us? We’ll mess with you.’”
At the federal level, courts have given Congress some latitude over rules that apply to judges. When Congress passed the Ethics in Government Act in 1978, requiring financial disclosures from federal government officials — including judges — in the wake of former President Richard Nixon’s Watergate scandal, a federal judge from Louisiana filed a class-action lawsuit.
Adrian Duplantier argued along with other judges that the law was unconstitutional because of the separation of powers doctrine. But the U.S. Fifth Circuit Court of Appeals ruled against Duplantier and his fellow plaintiffs in 1979, concluding that the Ethics in Government Act was constitutional.
But Robert Williams, director of the Center for State Constitutional Studies at Rutgers Law School, noted that states often differ from the federal government. He notes that Louisiana’s constitution explicitly says in a section on the Judiciary Commission that the state’s Supreme Court “shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.”
Williams suggested that any legal challenges to transparency that the Legislature forces on the courts would likely end where the perceived trouble begins: at the marble French Quarter doorstep of the Louisiana Supreme Court.
It’s an outcome that Williams said is common.
“You can’t take it to federal court, because it’s a matter for state law,” Williams said. “The legislators will say, ‘For goodness’ sake, they’re biased!’ It looks a little unseemly, but in states, Supreme Courts have to decide on their own powers. It’s not an unusual separation-of-powers battle.”
State Sen. Sharon Hewitt, a Slidell Republican who is sponsoring a bill this year to require the Supreme Court to post judges’ disclosures online, pointed out that the Legislature funds the judges and the courts in Louisiana and hence can influence court policy through its pursestrings. Hewitt said she was also surprised that the Metropolitan Crime Commission, a New Orleans-based watchdog group, “had to go to such extraordinary effort” to create an online database of judicial financial disclosures.
“Our three branches are separate but they do have checks and balances,” Hewitt said. “We do have policy-making authority; we represent constituents who have clearly been speaking out in the public recently about the need for more transparency in the judicial system.”
Supreme Court spokesman Robert Gunn said the high court is considering making judges’ financial statements available online.
“The Supreme Court has always sought to strike a balance between transparency and the safety of judges, who have been subjected to threats or other security incidents,” Gunn said.
State Rep. Lance Harris, R-Alexandria, is also sponsoring a bill this session that would require judicial financial disclosures to be posted online. Harris’ bill differs from Hewitt’s in minor ways: Hewitt’s bill is more specific about the categories of financial disclosure information that judges need to fill out, and it would require the Supreme Court to post the disclosures online. Harris’ bill, on the other hand, would require the Supreme Court to send the disclosures to the Ethics Board, which would post them online along with the disclosures of other public officials.
Harris is also sponsoring two bills this session that would do away with Louisiana’s long-running tradition of electing judges, which voters would have to approve through a constitutional amendment. Louisiana is one of just six states that elects judges through partisan elections for higher courts, according to the Brennan Center for Justice at New York University’s Law School. Judges are elected in nonpartisan elections in 15 other states, one of the most popular options nationwide.
Harris proposes to create nominating commissions made up of 15 people for each tier of state courts. Lawyers and non-lawyers alike would be appointed to the commissions. Judicial nominating commissions are common across the country, and are used in 36 states and Washington, D.C. to help fill high court vacancies, according to the Brennan Center.
The commissions would screen and vet potential judicial candidates, then send three candidates to the governor’s office. The governor would make the final appointment.
“The issue of election of judges should be a matter for public discussion and evaluation by the citizens, who should have the right to express their opinion on whether they prefer a system of direct participation in the election of judges or a system of appointment,” said Gunn, the Supreme Court spokesman.
Harris said he wants to change the system because of concerns that heavy spending in judicial races can later sway judges once they’re on the bench.
“We saw in our own state, because of y’alls reporting, where we may have to have a Supreme Court justice recuse himself from cases that go before him because of all the money that has gotten involved in judicial elections,” Harris said. “It’s a problem when you’re expected to be impartial on the bench, but you’re expected to raise all this money to be elected, and that could, in my opinion, compromise and politicize the system.”